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CAINE ET AL. v. GRIFFIN ET AL.

April 1, 1958

R. M. CAINE ET AL., APPELLANTS,
v.
WALTER S. GRIFFIN ET AL., RESPONDENTS.



The opinion of the court was delivered by: Moss, Justice.

April 1, 1958.

J.T. Jones died testate on August 20, 1939, leaving of force and effect his last will and testament, which was validly executed and duly admitted to probate on August 28, 1939, in the Probate Court for Greenville County, South Carolina. The will of J.T. Jones contained the following provision regarding the subject property of this suit:

"I will, devise and bequeath to my daughter Parie Lee Green, all of that certain tract of land in Butler Township and containing 7.6 acres, more or less, and conveyed to me by H.M. Fallaw by deed dated January 2, 1919, and recorded in R.M.C. Office for Greenville County in Vol. 56 at page 502; also tract of land on the Laurens Road, containing 55 acres, more or less, and conveyed to me by J.D. Greene, she to have and to hold both of said tracts of land for and during the term of her natural life time and at her death the same is to vest in her children if she has any, share and share alike. In case, however, she should not leave any children surviving her, then the same shall go and vest in my son, J.V. Jones, for and during his life time and at his death the same to go and vest in his children, share and share alike, but in case he should have no children surviving him at his death then the same is to go to my nearest relatives."

This is an action brought by R.M. Caine and Walter Goldsmith, appellants, to require Walter S. Griffin, one of the respondents, to convey to the appellants a good and marketable fee simple title to the subject property, free and clear of all liens and encumbrances and clouds on the title. The action also seeks, pursuant to Section 10-2001 to 10-2014 of the 1952 Code of Laws of South Carolina, known as the "Uniform Declaratory Judgments Act", a declaratory judgment that the said Walter S. Griffin is vested with a good and marketable fee simple title to said property, free of liens and encumbrances and clouds on the title.

It appears from the record in this cause that on April 28, 1951, Parie Lee Green, the daughter of the testator, instituted an action in the Greenville County Court praying that a proposed sale of the subject property be approved and that the Master in Equity for Greenville County, South Carolina, be directed to convey the subject property to one R.E. Hughes, for a consideration of $30,000. This complaint alleged that J.T. Jones died testate, seized and possessed of the real estate, the subject of this action, and that he disposed of said real estate by his will in the manner hereinbefore set forth. The complaint alleges also that Parie Lee Green is married but has no children, and that J.V. Jones has no children. The complaint then alleges who are the "nearest relatives" of the said J.T. Jones. All of these parties were made defendants in said action. Notice of pendency of action was filed in the Clerk of Court's office, along with the summons and complaint, on April 30, 1951. Service of the summons and complaint was personally had upon all resident defendants. Counsel for the plaintiff in said action made affidavit that the action concerned real estate located in Greenville County, South Carolina and that the action was one seeking the court's approval of a sale of the subject property. The affidavit set forth a number of non resident defendants and also unknown claimants. The complaint alleges that one Ira Ford is a member of the class "nearest relatives". He was sued individually and as representative of the class of nearest relatives of J.T. Jones, deceased. This affidavit also alleged that it was necessary for the publication of the summons, the notice of pendency of action, a notice to non resident infant defendants, and any and all unknown infant defendants over the age of fourteen years, and a notice to any unknown infant defendants under the age of fourteen years, and to the persons with whom the said infant defendants reside, requiring said infant defendants to procure the appointment of a guardian ad litem to represent them in said action, within twenty days after the service of this notice, and upon their failure so to do, application for such appointment would be made by the plaintiff herein. The record shows the publication of the aforesaid summons, notices, and notice of pendency of action in accordance with the requirements of the statutes, in the Greenville Piedmont, a newspaper of general circulation published in the City of Greenville, South Carolina. It appears also that a guardian ad litem was duly appointed, and filed an answer, for all of the minor defendants and also for all other infants known or unknown claiming any right, title, estate, interest in or lien upon the real estate described in the complaint. The record shows that the defendant, Ira Ford, answered the complaint individually and as representative of the class of nearest relatives of J.T. Jones, deceased.

In due course, the aforesaid action was referred to the Master for Greenville County, South Carolina, directing him to take the testimony and to report his findings of fact and conclusions of law, with authority to make any special recommendations and findings. The Master convened a reference and full testimony was taken in support of the allegations of the complaint. It appears from the testimony that the plaintiff had asked the court to approve a sale of the real estate for a purchase price of $30,000.00. It was also brought out at the hearing that various parties were interested in purchasing the property in question. In view of this fact, the Master directed all interested parties to submit, in writing, sealed bids for the purchase of the property. Four bids were submitted and among them was the bid of Walter S. Griffin, who proposed to exchange a store building and a parking lot situated in the City of Greenville, South Carolina, appraised at $40,000.00, for the subject property. This property would return a gross rental of $265.00 per month. The testimony showed that this bid was the most advantageous one to the parties to the action. It also appeared that the subject property was bringing an annual income of $200.00.

The Master found that the court had jurisdiction of the subject matter and the parties. He also found that all necessary and proper parties were before the court. He found that the defendant, Ira Ford, a party to the action, was representative of the class of nearest relatives of J.T. Jones, deceased.

Specifically, the Master made the following finding:

"I find as a fact that the property offered in exchange is of at least equal value with the property on Laurens Road; that the store building on Buncombe Street is a new building, well constructed and well rented. The parking lot is well located for such purposes and has potential value for commercial building purposes. The property is worth at least the conservative Forty Thousand ($40,000.00) Dollars appraisal put on it by Mr. Williams and Mr. Chandler."

The Master also made this specific finding:

"It seems to be, and I so find, a definite hardship on the life tenant to compel her to retain and pay taxes on this farm land, from which she receives only a pittance, when it can be sold for a good price or exchanged for income producing property and the life tenant receive an income therefrom.

"From the testimony and the record, it is clear that all remaindermen who are sui juris approve of the disposal of the Laurens Road property, and it seems clear that all are agreed that the exchange for the income producing Griffin property is for the best interest of the successive life tenants, and the remaindermen. I find as a fact that this exchange is to the best interest of all the parties and recommend that it be accomplished."

The report of the Master of Greenville County was confirmed by the Judge of the Greenville County Court by a decree, in the following language:

Accordingly, the Judge of the County Court directed that the Master of Greenville County convey, by good fee simple deed, the subject property above referred to, to Walter S. Griffin, or his designees; that in compliance with said decree, and pursuant to the directions of Walter S. Griffin, the Master of Greenville County did execute and deliver to Walter S. Griffin, H.B. McKoy, Sam R. Zimmerman, Sr. and Sam R. Zimmerman, Jr. a deed to said property, which deed was executed on September 27, 1951, and recorded in the office of the R.M.C. for Greenville County, in Deed Book 442, at page 520.

It also appears that subsequently Sam R. Zimmerman, Jr., Sam R. Zimmerman, Sr. and H.B. McKoy conveyed their right, title and interest in and to the subject property to Walter S. Griffin, and at the time of the institution of this action he was the sole owner thereof.

In the instant action it appears that the respondent, Walter S. Griffin, entered into a contract with the appellants, R.M. Caine and Walter Goldsmith, whereby Griffin contracted to sell to the appellants an undivided one-fourth interest in the subject property. The appellants assert that they are desirous of consummating said purchase but verily believe that there are certain outstanding claims and possible defects in the title of the said Walter S. Griffin to said subject property, which constitutes a cloud on the title of the said Walter S. Griffin. The appellants assert that this action is brought for the purpose or removing any and all clouds on the title to the property of Walter S. Griffin and barring the claims of any person in and to said property.

The instant action was instituted by the filing of a summons and complaint and a notice of pendency of action in the office of the Clerk of Court for Greenville County on October 11, 1957. On the same date, pursuant to affidavit of counsel for appellants an order nisi and an order of publication was entered by the Resident Judge of the Thirteenth Judicial Circuit. Pursuant to this order, service of the summons in this action was directed to be made upon any known non resident defendants, and upon any unknown party claiming any right, title, estate, interest in or lien upon the real estate described in the complaint, by the publication of said summons and notice of pendency of action once a week for three weeks in the Greenville News-Piedmont. There was also published a notice to all unknown infant defendants over fourteen years of age and to any person under legal disability; and to all unborn children of Parie Lee Green and any unknown infant defendants under fourteen years of age, and to the person or persons with whom said infant defendants reside; and to unknown infant defendants over fourteen years of age residing within this State; and to any person under legal disability residing within this State and to his committee, or if he has no committee, to the person with whom he resides, notifying each of said parties to apply for the appointment of a guardian ad litem to appear and represent such. There was also published an order nisi appointing Hubert E. Nolin as guardian ad litem for all infant defendants under the age of fourteen years, and all infant defendants residing in some other State or temporarily absent from this State, and all defendants under legal disability residing in some other State or temporarily absent from this State, unless said infant defendants or persons under legal disability, or some one in his or their behalf, procures the appointment of a guardian ad litem on or before November 12, 1957. The said Hubert E. Nolin was also appointed guardian ad litem for ...


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